How to stay union-free
By James Redeker November 16, 2008 ET
With the Democrats achieving bigger majorities in both the House and Senate and Sen. Obama taking the White House, non-union employers must prepare for some version of the Employee Free Choice Act becoming law—and soon. Passage of EFCA is the top item on organized labor's payback list and, with the results of the election now in, it is certain that they will get it. The estimated $300 million organized labor put into the election campaign will not go to waste. It will guarantee unions millions of new dues-paying members.
EFCA was proposed on April 19, 2005, by Sens. Edward Kennedy and Arlen Specter and Reps. George Miller and Peter King. One of the bill's co-sponsors was Sen. (now President-elect) Barack Obama. EFCA passed the House on March 1, 2007, but died in the Senate on June 26, 2007, at the hands of a cloture vote. The version passed by the House had the following significant features:
• If a majority of the employees in an appropriate unit for collective bargaining are found by the National Labor Relations Board to have signed union authorization cards, the labor board is prohibited from ordering a secret ballot election and must certify the union as the collective bargaining representative of the employees. The order of the board would include a direction that the employer must negotiate a contract with the union that will set the terms and conditions of the employment of the employees.
• The employer and union must begin negotiations not later than 10 days after the certification order by the labor board.
• If after 90 days from the date bargaining commenced there is no agreement reached by the employer and union, the Federal Mediation and Conciliation Service is to be notified and mediation is to begin.
• If after 30 days from the date of the notice to FMCS there is no agreement reached, the FMCS shall appoint an arbitration panel. The arbitration panel will determine the terms and conditions of a contract covering the employees. The length of the contract would be two years.
• If an employer is found by the labor board to have discriminated against an employee because of union activity during the time of organizing and until the date of the first contract, the employee is to be paid compensatory damages (back pay, if the discrimination was discharge) plus two times the amount in liquidated damages.
• If an employer is found to have willfully or repeatedly interfered with union activity or discriminated against an employee for engaging in union activity during the time of organizing and until the date of the first contract, the employer may be fined up to $20,000 for each violation.
Under current federal law, employers and employees have the right to have the issue of union representation determined by a secret ballot election and, if the employees selected the union, the employer is obligated to negotiate with the union in good faith. If no agreement is reached, the union is allowed to conduct a work-stoppage and the employer has the right to lock out the employees in an attempt to force an agreement. There is no provision in the current law that would lead to the imposition of contract terms on an employer by a third party. Even if the illegal conduct of an employer resulted in an order from the labor board that it must recognize and deal with the union, neither the board nor any court would have the authority to impose contract terms as a remedy for bad-faith bargaining.
Also, under current law, unions are largely unregulated in what they do or say to get employees to sign membership cards. The reason for this willing suspension of scrutiny is the board's belief in the corrective effect of a secret ballot election and pre-election campaign, during which the employer can educate the employees with respect to what unions can and cannot do. The theory of the labor board is that an employee who is deceived or coerced into signing a union membership card in a local bar, for example, will have an opportunity to reverse his decision in the secrecy of a voting booth.
It is notable that, if the House-passed version of EFCA becomes law, there would be no change to the current permissive environment that surrounds union membership card-signing and no means by which employers may be able to challenge the validity of a particular employee's written designation of the union as his representative. While rational thought would dictate that some checks and controls will be written into either the law or its implementing regulations, such controls, in all likelihood, will be opposed by labor unions and, possibly, the irrational exuberance of a filibuster-proof Congress beholden to their labor union supporters, which may result in a deeply flawed law that trammels the rights of both employers and employees. Further, the regulations would be written by regulators appointed by a president who co-sponsored the bill and who, during his campaign, has stated his continued support for it, as originally drafted.
This means that employers who wish to remain union-free and free from the imposition by strangers of wages, benefits and working conditions in their workplace must develop and maintain a work force that is educated and resistant to union tactics and propaganda. These actions must be taken immediately and cannot wait until the final law and regulations are passed. Waiting will put employers in serious danger of losing control of their own companies.
An effective union-free strategy must have at least five components: employee policies and systems that match up well against the best and most attractive things a union may offer; structural modifications to ensure that the units of employees that will be the most difficult to organize will be the only appropriate units under labor board law; employee education about what unionization means and costs that is effective and constant, inoculating employees against card-signing campaigns based on deceit, half-truths and coercion; identification of true supervisors and training them to ensure that they will be positive and knowledgeable advocates for a union-free workplace; and a rapid-response program that will detect union activity early, that will launch a highly effective counter-campaign and that will prepare the employer to raise any legal issues the new law and process may make available to preserve the rights of the employees to have a meaningfully
free choice.
James Redeker is co-chairman of the employment services group at WolfBlock.
URL for this article: http://www.financialweek.com/apps/pbcs.dll/article?AID=/20081116/REG/311179995/1023/OTHERVIEWS